Election litigation after Moore v. Harper–lessons from the Takings Clause

This is the first in a few posts looking at litigation comparable to the issues in Moore v. Harper to see if any lessons can be learned from those areas. I’ll start with the Takings Clause.

In Moore, the Court noted:

State law, for example, “is one important source” for defining property rights. Tyler v. Hennepin County, 598 U. S. __, __ (2023) (slip op., at 5); see also Board of Regents of State Colleges v. Roth, 408 U. S. 564, 577 (1972) (property rights “are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law”). At the same time, the Federal Constitution provides that “private property” shall not “be taken for public use, without just compensation.” Amdt. 5. As a result, States “may not sidestep the Takings Clause by disavowing traditional property interests.” Phillips v. Washington Legal Foundation, 524 U. S. 156, 164 (1998); see also Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U. S. 155, 164 (1980) (holding that States may not, “by ipse dixit, . . . transform private property into public property without compensation”).

While this is an important universe of cases where the federal courts do not take state courts’ assessment of state law at face value, it’s not clear how often the federal courts actually reject state courts’ assessment of state law. That is, federal courts, in theory, have supervisory review over state law on property in the context of the Takings Clause. Do they second guess state court determinations? If so, how often?

The Court doesn’t cite it, but its most recent venture into this area arose in a 2010 case–with limited fallout in the lower courts.

In 2010, the Court issued its decision in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection. (You may note the Court’s citations in Moore predate Stop the Beach but I use the case as a recent benchmark.) One limitation to it is the fact that it was a plurality opinion, but it identifies what has been labeled as a”judicial taking.” As Justice Scalia’s opinion put it:

In sum, the Takings Clause bars the State from taking private property without paying for it, no matter which branch is the instrument of the taking. To be sure, the manner of state action may matter: Condemnation by eminent domain, for example, is always a taking, while a legislative, executive, or judicial restriction of property use may or may not be, depending on its nature and extent. But the particular state actor is irrelevant. If a legislature or a court declares that what was once an established right of private property no longer exists, it has taken that property, no less than if the State had physically appropriated it or destroyed its value by regulation. “[A] State, by ipse dixit, may not transform private property into public property without compensation.”

The plurality opinion gravitated toward the “fair and substantial basis” test while rejected some other articulations (lightly edited):

First, in a case claiming a judicial taking they would add to our normal takings inquiry a requirement that the court’s decision have no “fair and substantial basis.” This is taken from our jurisprudence dealing with the question whether a state-court decision rests upon adequate and independent state grounds, placing it beyond our jurisdiction to review. To ensure that there is no “evasion” of our authority to review federal questions, we insist that the nonfederal ground of decision have “fair support.” A test designed to determine whether there has been an evasion is not obviously appropriate for determining whether there has been a taking of property. But if it is to be extended there it must mean (in the present context) that there is a “fair and substantial basis” for believing that petitioner’s Members did not have a property right to future accretions which the Act would take away. This is no different, we think, from our requirement that petitioner’s Members must prove the elimination of an established property right.

. . .

For its part, petitioner proposes an unpredictability test. Quoting Justice Stewart’s concurrence in Hughes v. Washington, 389 U.S. 290, 296 (1967), petitioner argues that a judicial taking consists of a decision that “‘constitutes a sudden change in state law, unpredictable in terms of relevant precedents.'” The focus of petitioner’s test is misdirected. What counts is not whether there is precedent for the allegedly confiscatory decision, but whether the property right allegedly taken was established. A “predictability of change” test would cover both too much and too little. Too much, because a judicial property decision need not be predictable, so long as it does not declare that what had been private property under established law no longer is. A decision that clarifies property entitlements (or the lack thereof) that were previously unclear might be difficult to predict, but it does not eliminate established property rights. And the predictability test covers too little, because a judicial elimination of established private-property rights that is foreshadowed by dicta or even by holdings years in advance is nonetheless a taking. If, for example, a state court held in one case, to which the complaining property owner was not a party, that it had the power to limit the acreage of privately owned real estate to 100 acres, and then, in a second case, applied that principle to declare the complainant’s 101st acre to be public property, the State would have taken an acre from the complainant even though the decision was predictable.

(It’s worth considering whether “predictability”–rejected by four members of the Court, including Justice Thomas, who joined Justice Scalia’s opinion here–would fit with potential future tests, as Rick P. blogged a little about last year thinking about “fair and substantial basis.”)

Back in December, I blogged about oral argument in Moore and Justice Scalia’s critique of the Due Process angle in other opinions in Stop the Beach:

Where a particular Amendment ‘provides an explicit textual source of constitutional protection’ against a particular sort of government behavior, ‘that Amendment, not the more generalized notion of “substantive due process,” must be the guide for analyzing these claims.’”. . . The second problem is that we have held for many years (logically or not) that the “liberties” protected by substantive due process do not include economic liberties. . . . Justice Kennedy’s language (“If a judicial decision . . . eliminates an established property right, the judgment could be set aside as a deprivation of property without due process of law”) propels us back to what is referred to (usually deprecatingly) as “the Lochner era.” . . . That is a step of much greater novelty, and much more unpredictable effect, than merely applying the Takings Clause to judicial action. And the third and last problem with using substantive due process is that either (1) it will not do all that the Takings Clause does, or (2) if it does all that the Takings Clause does, it will encounter the same supposed difficulties that Justice Kennedy finds troublesome.

Now, all of that is just a prelude. A plurality of the Supreme Court opened the door to federal courts reviewing state court interpretations of state law under the Takings Clause. What happened?

The cases after Stop the Beach reflect a unanimous trend: no state judicial decision, from my research, has been found to be a judicial taking.

To start, the procedural posture of the bulk of the cases is interesting. These are typically not cases where the state courts are looking at their own interpretation of property and asked to construe property cautiously to avoid a judicial taking. Instead, it is more often appellate review of a lower court holding, and asking the state appellate court to conclude that the lower court effected a “judicial taking.” State appellate courts have consistently rejected these arguments, often without much engagement of Stop the Beach except a cursory mention.

That said, sometimes state courts do expressly invoke Stop the Beach. For instance, the Indiana Supreme Court in a 2018 case explained, “In concluding that Bainbridge and its progeny have no application to Lake Michigan, we do ‘not declare that what had been private property under established law no longer is.’ Stop the Beach Renourishment, Inc. v. Florida Dep’t of Envtl. Prot., 560 U.S. 702, 728, 130 S.Ct. 2592, 177 L.Ed.2d 184 (2010). Rather, our decision serves to ‘clarif[y] property entitlements (or the lack thereof)’ that may have been previously unclear. Id.

This invocation does not appear to be a precautionary interpretation of state law in worry of federal oversight. Instead, it is a proactive acknowledgement of a potential federal legal argument–but, that the state court is going to continue to do what it thinks is consistent with state law. State courts may be “on notice,” as I argued earlier with respect to Moore, but the question, as Ned put it here at ELB, is “If those courts heed that message” to interpret state law in a permissible way. (Emphasis added.) (Maybe these state courts are interpreting state law “permissibly” anyway, of course!)

Additionally, the bulk of citations arise in state courts, not attacks on state court holdings in federal court. I blogged earlier that I think federal court offers a limited path after Moore and that the bulk of these cases arise on cert petitions to the Supreme Court. Federal courts, however, have also not been terribly receptive to these arguments. Here’s a Seventh Circuit opinion in 2022 summarizing the state of play:

Since Stop the Beach was decided, no federal court of appeals has recognized this judicial-takings theory. What has occurred instead is avoidance: every circuit to consider the issue has expressly declined to decide whether judicial takings are cognizable. Instead, each court has assumed without deciding that if such a cause of action were to exist, the relevant test would be the one Justice Scalia suggested in his Stop the Beach plurality opinion: did some arm of the state declare that “what was once an established right of private property no longer exists”? In each of the cases that have reached our sister circuits, the courts have held that the challenged state-court decision had not erased an established property right. Thus, even if there were a theoretical claim for a “judicial” taking, the plaintiffs failed. See Wells Fargo Bank v. Mahogany Meadows Ave. Tr. (9th Cir. 2020) (declining to answer whether judicial-takings claims are possible when “nothing in Nevada law” showed that plaintiffs had an “established right” to disputed property); Petrie ex rel. PPW Royalty Tr. v. Barton (8th Cir. 2016) (opting not to decide whether a claim for judicial takings exists where it “would have failed” anyway); In re Lazy Days’ RV Ctr. Inc. (3d Cir. 2013) (quickly discarding a claim that a bankruptcy order was a taking because “adjudication of disputed and competing claims cannot be a taking”).

Stop the Beach offered a potential path forward for judicial takings, state courts construing state law in a way that federal courts could revisit. But in practice, over ten-plus years, it appears to have had no material effect.

Now, it is, of course, entirely possible that the lack of success of challengers under the Takings Clause after Stop the Beach does not translate to the Legislature Thereof Clauses after Moore. Stop the Beach was a plurality, limiting its effect. The Presidential Electors and Elections Clauses are more contentious and raise different partisan valences than a run of the mill takings case. But, on the flip side, we still do not have a standard from a majority of the Court after Moore, and it is possible that the standard is not terribly friendly to challengers.

But it’s a note that even though the Court left open the door for more federal review of state courts in Moore, it’s not clear that when it’s done so in the recent past in another constitutional clause it’s had much of an impact. We shall see.

Special thanks to Professors Molly Brady and Chris Odinet for indulging me in helpful conversations about this topic.

Share this: